A U.S. district court judge last week ordered Southwestern Electric Power Co. (SWEPCO) to cease work on a small tract of land designated as jurisdictional wetlands where the utility is building the $1.7 billion John W. Turk., Jr. power plant—the nation’s first ultrasupercritical pulverized coal power plant.
After oral arguments, Judge Bill Wilson granted part of a preliminary injunction requested by environmentalist groups Sierra Club, Audubon Arkansas, and others, and the Hempstead County Hunting Club, which had asked the court to halt all construction of the plant.
The groups alleged that the U.S. Army Corps of Engineers had violated procedures related to a number of environmental laws, including the National Environmental Policy Act of 1969, when it issued a Permit Evaluation and Decision Document to the American Electric Power subsidiary’s project in December 2009. They also alleged that the Corps improperly narrowed its scope of review for the project, which led to a “failure to consider important indirect and cumulative impacts” on the environment.
SWEPCO has begun construction of the 600-MW coal plant on a site that covers about 3,000 acres, 188 acres of which are wetlands. SWEPCO planned to impact with dredge or fill material eight of the 188 wetland acres.
Judge Wilson noted in his order that the Corps had maintained it had jurisdiction over only the wetlands on the project site and properly limited its review to the eight acres and 8,150 linear feet of streams impacted when considering SWEPCO’s application.
But he ruled: “Construction on the work authorized by the … permit—that is, any discharge of dredge or fill material into jurisdictional wetlands, impacting of streams, placement of the water intake structure at the bank of the Little River, and the spanning of transmission lines across the Little and Red Rivers—must halt immediately. Mitigation measures for areas already impacted need not stop.”
The judge also refuted SWEPCO’s argument that the injunction would cost the company $309.3 million for the 12-month delay to the entire project, saying that his ruling affected just a small part of the site and SWEPCO could recoup losses.
“While we are disappointed in the court’s decision, we respect the judge’s ruling and will discontinue work in the areas affected by the ruling. We will demobilize activities in the affected areas in a safe and orderly manner,” said Venita McCellon-Allen, SWEPCO president and chief operating officer, in a statement e-mailed to POWERnews.
McCellon-Allen added that the injunction would not affect overall construction of the plant, noting that it applied to the “installation of the water intake structure in the Little River, a few areas crossed by the water pipeline, and placement of a few poles associated with one of the transmission lines.”
The utility plans to continue construction of the plant, which is 40% complete and scheduled to being operating as planned in October 2012. “As you’d expect, however, we will continue to exhaust all legal remedies to protect SWEPCO’s investment in the Turk Plant and in Southwest Arkansas," McCellon-Allen said.
The lawsuit is the latest in a series of legal challenges faced by the Turk project. Regulators in Arkansas, Texas (July 2008), and Louisiana (March 2008)—states served by SWEPCO—have approved the Turk Plant project. The plant also received the required air permit from the Arkansas Department of Environmental Quality in November 2008—a permit affirmed earlier this year by the Arkansas Pollution Control and Ecology Commission.
This summer, after the Arkansas Supreme Court declined to reconsider a ruling that voided a Certificate of Environmental Compatibility and Public Need (CECPN) to build the power plant, SWEPCO said it would continue construction of the plant under an option to sell power in other markets.
Sources: POWERnews, U.S District Court—Western District of Arkansas, SWEPCO